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2019-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COMMONWEALTH ELECTORAL AMENDMENT (ENSURING VOTER CHOICE
THROUGH OPTIONAL PREFERENTIAL VOTING AND THE ROBSON
ROTATION) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator McGrath)
COMMONWEALTH ELECTORAL AMENDMENT (ENSURING VOTER CHOICE
THROUGH OPTIONAL PREFERENTIAL VOTING AND THE ROBSON
ROTATION) BILL 2021
GENERAL OUTLINE
The Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional
Preferential Voting and the Robson Rotation) Bill 2021 (the Bill) amends the Commonwealth
Electoral Act 1918 (the Electoral Act) to improve the House of Representatives voting
system, to enhance voter choice while reducing the impact of advantageous ballot positions.
The Bill proposes to:
• reduce the complexity in the democratic process and enhance voter choice in House of
Representatives elections, by introducing optional preferential voting and removing
the requirement for compulsory preferential voting;
• promote voter choice to allocate any preferences of their choosing and removing the
requirement for voters to preference candidates they do not wish to vote for;
• uphold voter intention by introducing vote saving provisions that capture voter intent
and reduce the risk of increased vote informality;
• introduce the Robson Rotation, whereby the position of candidates listed on House of
Representatives ballot papers are re-ordered between ballot papers, to remove the
effect of advantageous or favoured ballot positions; and
• increase transparency of elections by removing any real or perceived advantage of
ballot paper position by distributing and/or limiting the effect of 'down the ballot
paper', 'linear' or 'donkey' votes.
The Bill responds to key elements of the final report of the Joint Standing Committee on
Electoral Matters (JSCEM) inquiry into the conduct of the 2019 Federal election and matters
related thereto, tabled on 10 December 2020.
The JSCEM identified a rise in informal votes in the 2019 election, with New South Wales
having the highest rate of informal votes. The JSCEM noted confusion of voters in New
South Wales, which utilises an optional preferential voting system. The JSCEM concluded
that due to the close proximity of the 2019 New South Wales election and the 2019 federal
election, that was held within seven months, New South Wales voters likely mistakenly
thought that providing only one preference was a valid method of voting in the 2019 federal
election.
To provide confidence to voters in federal elections, while upholding voter choice, the Bill
will introduce optional preferential voting that will enable a higher rate of voter participation,
where voters can cast their vote for their preferred candidate, and preference any other
candidates if they wish. Removing the requirement of full preferencing enhances voter
intention as it enables voters to choose when their vote should exhaust if their preferred
candidate or candidates are excluded in the counting process. The choice to not vote for a
candidate that you do not know, or support, furthers the democratic process.
The Bill further enhances voter intention by providing for a less complex voting system and
provides vote saving provisions for voters who do not preference each and every candidate,
which will reduce the number of informal votes. Together, these amendments will improve
transparency and simplify the voting system, thereby enhancing the number of formal votes,
and supporting the democratic process.
To increase fairness in the electoral process, the JSCEM recommended implementing the
Robson Rotation, in which the order of candidates' names on the ballot papers is randomised
from one ballot paper to the other. The Bill introduces this change, broadly reflecting the
methodology currently used in Tasmanian elections, along with provisions for the
determination of the order of candidate names on the ballot paper, and the printing and
distribution of ballot papers.
The Bill proposes a method where equal batches of ballot papers are distributed, which as far
as practicable equally list each candidate in favourable positions. This randomisation of the
order that candidate names appear on the ballot papers ensures fairness in the democratic
process, as it removes advantages associated with candidates being positioned in more
favourable positions.
The randomisation of candidate names on ballot papers will minimise the effect of any real or
perceived effect of candidates being randomly drawn in more favourable positions on the
ballot paper. To increase confidence in the voting process, by creating a number of versions
of the ballot papers, the Bill will allow for 'down the line', 'linear' or 'donkey' votes to be
more evenly distributed between all candidates.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in the Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the statement of compatibility with human rights is at
Attachment A.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. Clause 2 sets out when the Bill's provisions will commence. The table specifies that
the whole Bill will commence by a day to be fixed by Proclamation. However, if the
provisions do not commence within 6 months beginning on the day the Bill received Royal
Assent, the provisions will commence on the day after the end of that period.
Clause 3 - Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms. There is one Schedule to the Bill, which provides for amendments to
the Commonwealth Electoral Act 1918.
Schedule 1--Amendments
4. All amendments in Schedule 1 are to the Commonwealth Electoral Act 1918 (the
Electoral Act).
Part 1 - Amendments relating to optional preferential voting
Commonwealth Electoral Act 1918
Item 1 - Paragraph 240(1)(b)
5. This item repeals and substitutes paragraph 240(1)(b), which concerns the marking of
votes in House of Representatives elections. New paragraph 240(1)(b) provides that a person
may allocate preferences if the person wishes, thereby making preferential voting in House of
Representatives elections optional. The person may vote for additional candidates by writing
numbers beginning with the number 2 in the squares opposite their preferred candidates on
the ballot paper.
Item 2 - At the end of section 240
6. This item amends section 240 to add subsections (3) and (4), that provide for the
saving of votes with repeated or missing numbers, respectively. These provisions are
designed to minimise voter informality and maximise the realisation of voter choice up until
the point where the voter's intention is no longer clear.
• Subsection (3) relates to repeated numbers in preference votes, where a voter records
the same preference for more than one candidate. The voter has not expressed a clear
choice for the preference that is repeated, and the voter's preference cannot be safely
assumed. Therefore, the preferences are to be treated as formal up until the repeated
preference occurs, with the preferences in error and any subsequent preference(s) to
be disregarded.
For example - if the voter records preferences as 1, 2, 3, 4, 4, 5, the first, second and
third preference will be formal, with preferences 4, 4 & 5 being disregarded.
• Subsection (4) relates to missing numbers in preference votes, where a voter records a
sequence of preferences with a break in the order of preferences. The voter has not
expressed a clear choice for the preference where the break occurs, and the voter's
preference cannot be safely assumed. Therefore, the vote preferences are to be treated
as formal up until the break of preference occurs, with the preference in error and any
subsequent preferences to be disregarded.
For example - if the voter records preferences as 1, 2, 3, 5, 6, the first, second and
third preference will be formal, with preferences 5 & 6 being disregarded.
Item 3 - Paragraph 268(1)(c)
7. This item repeals and substitutes paragraph 268(1)(c), which deals with informal
ballot papers. New paragraph 268(1)(c) provides that a ballot paper will be informal if no
vote is indicated on it or does not indicate the voter's first preference. This amendment
removes the requirement for voters to number every box, and minimises informality in
optional preferential voting, as a vote will only be informal under new paragraph 268(1)(c) if
the voter fails to clearly mark their first preference vote.
Item 4 - Subparagraph 274(7)(d)(i)
8. This item repeals and substitutes subparagraph 274(7)(d)(i) and adds subparagraphs
274(7)(d)(ia) and 274(7)(d)(ib). These measures amend the scrutiny of votes in House of
Representatives elections under section 274 to accommodate optional preferential voting.
Upon excluding a candidate with the fewest first preference votes, the Divisional Returning
Officer is required to either distribute preferences according to the individual ballot papers or
cast aside and exhaust the ballot papers that do not list a subsequent preference. Specifically:
• New subparagraph 274(7)(d)(i) requires the Divisional Returning Officer to exclude
the candidate who receives the fewest first preference of votes from the count.
• New subparagraph 274(7)(d)(ia) provides that each ballot paper, counted to a
candidate excluded from the count under subparagraph 274(7)(d)(i), and that does not
express preferences for another candidate, is to be set aside and exhausted.
• New subparagraph 274(7)(d)(ib) provides that each ballot paper, counted to a
candidate excluded under subparagraph 274(7)(d)(i), and that is not exhausted under
subparagraph 274(7)(d)(ia), shall be counted in accordance with the voter's
preference.
Item 5 - Subparagraph 274(7)(d)(ii)
9. This item amends subparagraph 274(7)(d)(ii), which concerns the process by which
the Divisional Returning Officer continues to exclude the candidate(s) with the fewest votes
until only two candidates remain. This amendment provides for the setting aside of ballot
papers where preferences have been exhausted, and the remaining ballot papers to be counted
in accordance with the voter's preference.
Item 6 - Paragraph 274(7AA)(c)
10. This item repeals and substitutes paragraph 274(7AA)(c) to accommodate the flow of
preferences of excluded candidates when no candidate has an absolute majority of votes.
11. Subsection 274(7AA) concerns the process by which the Divisional Returning Officer
distributes preference votes if no candidate has an absolute majority of votes. The Divisional
Returning Officer must rank the candidates in order of the highest number of first preference
votes under subsection 274(7AB).
12. Under subparagraph 274(7AA)(b)(i), the Divisional Returning Officer must determine
if the total number of first preferences of all candidates other than the first and second ranked
candidates, is equal to or more than the number of first preference votes counted for the
second candidate. If so, the Divisional Returning Officer must proceed with the scrutiny of
votes in paragraph 274(7)(d) by excluding candidates with the fewest first preference votes.
13. If the number of first preferences counted to all candidates other than the first or
second ranked candidates is less than the number of first preferences counted for the second
candidate, subparagraph 274(7AA)(b)(ii) requires the Divisional Returning Officer to exclude
all candidates other than first and second ranked candidates.
14. The new paragraph 274(7AA)(c) provides for when the Divisional Returning Officer
must exclude all candidates other than first and second ranked candidates under subparagraph
274(7AA)(b)(ii). The new subparagraph 274(7AA)(c)(i) requires the Divisional Returning
Officer to set aside exhausted ballot papers of excluded candidates that do not express a
preference for either the first of second ranked candidate, and the new subparagraph
274(7AA)(c)(ii) provides for all remaining ballot papers of an excluded candidate to be
allocated to one of the first or second ranked candidates in accordance with the voter's
intention.
Item 7 - Subsection 274(10)
15. This item amends subsection 274(10) to include the words "and exhausted" after the
word informal. This subsection defines an 'absolute majority of votes' for the purpose of
counting House of Representatives votes. This amendment provides for the exclusion of any
exhausted votes when determining an absolute majority.
Item 8 - Schedule 1 (Form F)
16. This item repeals and substitutes Form F in Schedule 1. The new form is amended to
provide instructions on how to vote in a system of optional preferential voting. Specifically,
the instructions are amended to state:
"Write the number 1 in the box next to the candidate of your choice. You can show
more choices, if you want to, by writing numbers in the other boxes, starting with the
number 2."
17. This amendment informs the voter on how to vote and clearly states that the voter
allocates their first preference by writing the number '1' in the box next to their preferred
candidate. The form further informs the voter the option to allocate additional preferences, if
the voter wants to, by writing numbers in other boxes, starting with number 2.
Part 2 - Amendments relating to ballot papers
Commonwealth Electoral Act 1918
Item 9 - Subsection 4(1)
18. This item inserts the definition of 'favoured position' into section 4 of the Act.
19. The definition of 'favoured position' relates to certain positions in the order that
candidate names are listed on the ballot paper for House of Representatives elections.
20. The definition enables the operation of the Robson Rotation, by stipulating what
positions on the ballot paper are favourable depending on the total number of candidates. It
sets out what the favoured positions are for ballot papers that have 2 to 9 candidates and
prescribes what favoured positions are if there are 10 or more candidates contesting a
division. For example, when:
• only two candidates are contesting a division, the first position on the ballot paper is
a favoured position;
• five candidates are contesting a division, the first, third and fifth positions on the
ballot paper are considered favoured; and
• nine candidates are contesting a division, the first, second, eighth and ninth positions
on the ballot paper are considered favoured.
21. A 'down the ballot paper' or 'donkey' vote is where the voter numbers the boxes in
sequential order from the top to the bottom of the ballot paper. This likely results in
candidates who are successful in drawing the first position on the ballot paper receiving a
majority of these vote types, often giving them a disproportional advantage over the other
candidates. The first few positions on the ballot paper are therefore considered favourable
positions. The same concept applies for voters who list their voter preferences in reverse
order, from bottom to top, which is why the bottom positions are also considered favourable.
22. The introduction of the Robson Rotation under item 11 requires all candidates to be,
as far as practicable, evenly listed in these favourable positions, which in effect randomises
the order candidates appear on the ballot paper and removes any real or perceived ballot
paper advantage by evenly distributing the advantage between all candidates.
Item 10 - Paragraph 209(7)(c)
23. This item inserts the words 'as far as practicable' into paragraph 209(7)(c), which
requires an officer to write the full names of all candidates in the same order as it would be
required if the ballot were being printed, if names of candidates are not on the ballot paper.
24. The introduction of the Robson Rotation under item 11 will result in numerous ballot
papers being issued within a Division, where the names of candidates will be printed in
various orders, making it impracticable for officers to accurately replicate by handwriting a
ballot paper. This amendment allows for officers to comply with this requirement "as far as
practicable".
Item 11 - Section 212
25. This item repeals and substitutes section 212, which sets out printing requirements for
ballot papers to be used in House of Representatives elections. The amendment introduces a
new section 212 that provides for the Robson Rotation of ballot papers to be implemented
and specifies the process of ordering candidates, and printing of ballot papers in House of
Representatives elections.
26. The amendment requires ballot papers to be printed in equal batches, where the order
of candidate is randomised between each batch of ballot papers, based on each candidate
appearing in the favoured positions introduced in item 9.
27. This amendment allows for a practicable method of reordering candidates' positions
between ballot papers, while ensuring a high degree of randomisation. The amendments
ensure that candidates' names are evenly distributed across batches of ballot papers, but
further requires, as far as practicable, for names to appear in favourable ballot paper positions
equally.
28. The randomisation of the order that candidate names appear on the ballot papers
ensures fairness in the democratic process, as it removes advantages associated with
candidates being positioned in more favourable positions.
29. Specifically, subsection 212(1) provides that the section applies to House of
Representatives elections.
Candidate names and squares - subsections 212(2)-(3)
30. Subsections 212(2)-(3) prescribe that ballot papers must distinguish candidate names
and contain squares opposite each candidate name.
• Subsection 212(2) enables names of candidates that bear similarities to be
distinguished in order to reduce confusion between various ballot papers.
• Subsection 212(3) requires that a square be printed opposition the name of each
candidate.
Printing and order of ballot papers - subsections 212(4)-(10)
31. Subsection 212(4) requires that ballot papers are to be printed in batches with the
ballot papers within each batch having the same order of candidate names.
32. Subsection 212(5) prescribes that there must be two sets of batches, both of which
will contain the same number of ballots, giving effect to the random re-ordering of candidate
names on the ballot papers.
First set of batches - subsections 212(6), (8) & (9)
33. Subsection 212(6) requires that the first set of batches of ballot papers is printed in
accordance with subsections 212(8) and (9). The number of batches within the two sets is
determined by the number of favoured positions introduced under item 9, and therefore
determined by the number of candidates.
34. Paragraph 212(8)(a) determines the number of batches within the first set, which
requires a new batch of ballot papers whereby each candidate appears in each of the favoured
positions. Therefore, there must be a new batch for a candidate to appear in each favoured
position. Paragraph 212(8)(b) requires that the number of ballot papers within each batch, and
therefore the number of ballots a candidate appears in a particular favoured position is, as far
as practicable, equal to the number of ballots on which other candidates appear in that
specific favoured position.
35. Subsection 212(9) requires the order of the first batch of ballot papers in the first set
to be determined by the Divisional Returning Officer in accordance with section 213, where
the order of candidates is drawn at random in a ballot draw.
Second set of batches - subsection 212(7)
36. Subsection 212(7) outlines how order of names in the second set of batches is
determined. Paragraph 212(7)(a) requires that there is a corresponding batch in the second set
for every batch in the first set of batches. Paragraph 212(7)(b) requires that each
corresponding batch in the second set of batches has the name of the same candidate in the
first position, but the subsequent order of candidates is reversed.
37. This is demonstrated by the example provided in subsection 212(7), which states "[i]f
the order of names on a batch in the first set of batches is ABCDE, the order of names on the
corresponding batch in the second set of batches is AEDCB".
38. This amendment requires corresponding batches that are ordered in reverse subject to
the first name, to ensure that each candidate appears in the favoured positions on a consistent
basis. This further ensures that each batch within the second set of batches has, as far as
practicable, an equal number of ballot papers as those within both the batches in the first and
second set - as prescribed in paragraph 212(7)(c).
Order of subsequent batches - subsection 212(10)
39. The order for all subsequent batches, after the first and second set of batches, is
determined by Schedule 2A. This is introduced under item 12 and prescribed by
subsection 212(10). This limits the number of batches of ballot papers that need to be printed,
while still allowing candidates' names to appear in different positions on ballot papers, to
ensure that the printing, collation and distribution of ballot papers will be feasible.
Collation of ballot papers - subsection 212(11)
40. Subsection 212(11) requires the Commissioner to, as far as practicable, ensure that
each issue of ballot papers is collated prior to distribution in a way that prevents ballot papers
from the same batch appearing consecutively. This amendment upholds the intention for
randomisation in relation to ballot papers and therefore will limit, to a high degree,
consecutive voters receiving ballot papers from the same batch. Furthermore, collating all the
batches together prior to distribution will ensure that individual polling places receive an
entire sample of ballot papers from all batches, and prevent any allocation being skewed to
contain more ballot papers from a particular batch.
Issuing of ballot papers - subsection 212(12)
41. Subsection 212(12) requires a presiding officer or polling official to, as far as
practicable, issue a voter with a ballot paper that is different from the ballot paper previously
issued by the officer or official. This amendment upholds the policy intention to ensure that
consecutive electors receive different ballot papers, thus ensuring a random distribution of
ballot papers.
Item 12 - Schedule 2A
42. This item inserts Schedule 2A after Schedule 2. The schedule inserted provides the
printing order for subsequent ballots for the purpose of subsection 212(10) as introduced in
item 11. Paragraphs 1(a)-(k) provide the printing order for subsequent batches where there
are 2 to 12 candidates, respectively. Paragraph 1(l) provides for when there are more than 12
candidates and requires the subsequent order to be determined by the Divisional Returning
Officer in accordance with section 213.
43. If more than 12 candidates are contesting a Division, the order of subsequent order of
batches is to be determined by ballot draw, while, as far as practicable, complying with
subsections 212(4)-(8).
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional
Preferential Voting And The Robson Rotation) Bill 2021.
The Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional
Preferential Voting And The Robson Rotation) Bill 2021 (the Bill) is compatible with the
human rights and freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill amends the Commonwealth Electoral Act 1918 (the Electoral Act) to increase voter
choice, reduce complexity and improve the current electoral system, by providing voters with
greater choice and supporting the democratic process. The Bill amends the Electoral Act by:
• implementing an optional preferential voting system for House of Representatives
elections;
• introducing vote saving provisions to capture voter intent and reduce the risk of
increased vote informality; and
• introducing the Robson Rotation whereby the position of candidates listed on House
of Representatives ballot papers are re-ordered between ballot papers, to remove the
effect of advantageous or favoured ballot positions.
Human rights implications
This Bill engages the right to take part in public affairs and elections, as contained in article
25 of the International Covenant on Civil and Political Rights.
The Bill enforces this right by amending the current House of Representatives voting system
to give voters greater control and choice over their vote. By introducing optional preferential
voting, the Bill allows voters to determine whether they wish to assign preferences and
prevents abuse of the system through preference deals between candidates and parties. The
Bill further provides vote saving provisions to uphold voter intention and reduce vote
informality.
In addition, the Bill introduces a methodology to randomise the order candidates are listed on
the ballot paper to reduce the effect of candidates receiving a disproportionate advantage
from favourable ballot paper positions. By evenly placing candidates in all positions of the
ballot paper, the amendment enhances the democratic process by randomly distributing
'donkey' or 'down the ballot' votes to all candidates.
The amendment maintains existing measures for the Divisional Returning Officer to take
adequate steps to distinguish candidate names that bear similarities, which reduces the risk of
confusion to voters where parties have similar names.
These measures cement voters as the primary determinant of the electoral outcome.
Conclusion
This Bill is compatible with human rights as it does not raise any negative human rights
issues.
Senator McGrath